concepcion-bautista v. salonga, gr no. 86439

8/11/2019 Concepcion-Bautista v. Salonga, GR No. 86439

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 86439 April 13, 1989

MARY CONCEPCION BAUTISTA, petitioner,vs.SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ONJUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R.MALLILLIN, respondents.

Mary Concepcion Bautista for and in her own behalf.

Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin

PADILLA,J .:

The Court had hoped that its decision in Sarmiento III vs. Mison,1would have settled thequestion of which appointments by the President, under the 1987 Constitution, are to be madewith and without the review of the Commission on Appointments. The Mison case was the firstmajor case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987Constitution which provides:

The President shall nominate and, with the consent of the Commission on

Appointments, appoint the heads of the executive departments, ambassadors,other public ministers and consuls, or officers of the armed forces from the rankof colonel or naval captain, and other officers whose appointments are vested inhim in this Constitution. He shall also appoint all other officers of the Governmentwhose appointments are not otherwise provided for by law, and those whom hemay be authorized by law to appoint. The Congress may, by law, vest theappointment of other officers lower in rank in the President alone, in the courts, orin the heads of the departments, agencies, commissions or boards.

The President shall have the power to make appointments during the recess ofthe Congress, whether voluntary or compulsory, but such appointments shall beeffective only until disapproval by the Commission on Appointments or until the

next adjournment of the Congress.

this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission andthe country's experience under the 1935 and 1973 Constitutions, held that only thoseappointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed bythe Commission on Appointments, namely, "the heads of the executive department,ambassadors, other public ministers and consuls, or officers of the armed forces from the rank ofcolonel or naval captain, and other officers whose appointments are vested in him in thisConstitution." All other appointments by the President are to be made without the participation ofthe Commission on Appointments. Accordingly, in the Mison case, the appointment of thereinrespondent Salvador M. Mison as head of the Bureau of Customs, without the confirmation of theCommission on Appointments, was held valid and in accordance with the Constitution.


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The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec.16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, asconstrued by this Court in appropriate cases, is the supreme law of the land. And it cannot beover-stressed that the strength of the Constitution, with all its imperfections, lies in the respectand obedience accorded to it by the people, especially the officials of government, who are thesubjects of its commands.

Barely a year after Mison, the Court is again confronted with a similar question, this time,whether or not the appointment by the President of the Chairman of the Commission on HumanRights (CHR), an "independent office" created by the 1987 Constitution, is to be made with orwithout the confirmation of the Commission on Appointments (CA, for brevity). Once more, asin Mison, the Court will resolve the issue irrespective of the parties involved in the litigation,mindful that what really matters are the principles that will guide this Administration and others inthe years to come.

Since the position of Chairman of the Commission on Human Rights is not among the positionsmentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments towhich are to be made with the confirmation of the Commission on Appointments, it follows that

the appointment by the President of the Chairman of the (CHR), is to be made without the reviewor participation of the Commission on Appointments.

To be more precise, the appointment of the Chairman and Members of the Commission onHuman Rights is not specifically provided for in the Constitution itself, unlike the Chairmen andMembers of the Civil Service Commission, the Commission on Elections and the Commission onAudit, whose appointments are expressly vested by the Constitution in the President with theconsent of the Commission on Appointments. 2

The President appoints the Chairman and Members of the Commission on Human Rightspursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of theCommission on Appointments because they are among the officers of government "whom he

(the President) may be authorized by law to appoint." And Section 2(c), Executive Order No. 163,5 May 1987, authorizes the President to appoint the Chairman and Members of the Commissionon Human Rights. It provides:

(c) The Chairman and the Members of the Commission on Human Rights shallbe appointed by the President for a term of seven years without reappointment.Appointment to any vacancy shall be only for the unexpired term of thepredecessor.

The above conclusions appear to be plainly evident and, therefore, irresistible. However, thepresence in this case of certain elementsabsent in the Mison casemakes necessary acloser scrutiny. The facts are therefore essential.

On 27 August 1987, the President of the Philippines designatedherein petitioner MaryConcepcion Bautista as"ActingChairman, Commission on Human Rights." The letter ofdesignation reads:

27 August 1987

M a d a m:

You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMANRIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes.

Ve


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rytru

lyyours,

CO

RAZONC.AQU

INO

HON. MARY CONCEPCION BAUTISTA 3

Realizing perhaps the need for a permanent chairman and members of the Commission onHuman Rights, befitting an independent office, as mandated by the Constitution, 4the Presidentof the Philippines on 17 December 1988 extended to petitioner Bautista a permanentappointment as Chairman of the Commission. The appointment letter is as follows:

17 December 1988

The HonorableThe ChairmanCommission on Human RightsPasig, Metro Manila

M a d a m:

Pursuant to the provisions of existing laws, the following are hereby appointed tothe positions indicated opposite their respective names in the Commission onHuman Rights:

MARY CONCEPCION BAUTISTA

ChairmanABELARDO L. APORTADERA, JRMember


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SAMUEL SORIANOMemberHESIQUIO R. MALLILLINMemberNARCISO C. MONTEIROMember

By virtue hereof, they may qualify and enter upon the performance of the dutiesof the office furnishing this Office and the Civil Service Commission with copies of

their oath of office.

Verytrulyyours,

CORAZONC.AQUINO

5

It is to be noted that by virtue of such appointment, petitioner Bautista was advised by thePresident that she could qualify and enter upon the performance of the duties of the office ofChairman of the Commission on Human Rights, requiring her to furnish the office of thePresident and the Civil Service Commission with copies of her oath of office.

On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitionerBautista took her oath of office by virtue of her appointment as Chairman of the Commission onHuman Rights. The full text of the oath of office is as follows:

OATH OF OFFICE

I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal,Makati, Metro Manila having been appointed to the position of CHAIRMANof theCommission on Human Rights, do solemnly swear that I will discharge to the bestof my ability all the duties and responsibilities of the office to which I have beenappointed; uphold the Constitution of the Republic of the Philippines, and obey allthe laws of the land without mental reservation or purpose of evasion.

SO HELP ME GOD.

MARYCONCEPCIONBAUTI


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STA

SUBSCRIBED AND SWORN TO before me this 22nd day of December in theyear of Our Lord, 1988 in Manila.

MARCELOB.F

ERNAN

ChiefJusticeSuprem

eCourt ofthePhilippines

6

Immediately, after taking her oath of office as Chairman of the Commission on Human Rights,petitioner Bautista discharged the functions and duties of the Office of Chairman of the

Commission on Human Rights which, as previously stated, she had originally held merely in anacting capacity beginning 27 August 1987.

On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission onAppointments requesting her to submit to the Commission certain information and documents asrequired by its rules in connection with the confirmation of her appointment as Chairman of theCommission on Human Rights. 7On 10 January 1989, the Commission on Appointments'Secretary again wrote petitioner Bautista requesting her presence at a meeting of theCommission on Appointments Committee on Justice, Judicial and Bar Council and HumanRights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I,Roxas Boulevard, Pasay City that would deliberate on her appointment as Chairman of theCommission on Human Rights. 8


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On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission onAppointments stating, for the reasons therein given, why she considered the Commission onAppointments as having no jurisdiction to review her appointment as Chairman of theCommission on Human Rights. The petitioner's letter to the Commission on Appointments'Chairman reads:

January 13, 1 989

SENATE PRESIDENT JOVITO R. SALONGAChairmanCommission on AppointmentsSenate, Manila

S i r:

We acknowledge receipt of the communication from the Commission onAppointments requesting our appearance on January 19, 1989 for deliberation onour appointments.

We respectfully submit that the appointments of the Commission commissionersof the Human Rights Commission are not subject to confirmation by theCommission on Appointments.

The Constitution, in Article VII Section 16 which expressly vested on thePresident the appointing power, has expressly mentioned the governmentofficials whose appointments are subject to the confirmation of the Commissionon Appointments of Congress. The Commissioners of the Commission on HumanRights are not included among those.

Where the confirmation of the Commission on Appointments is required, as in thecase of the Constitutional Commissions such as the Commission on Audit, CivilService Commission and the Commission on Elections, it was expressly providedthat the nominations will be subject to confirmation of Commission onAppointments. The exclusion again of the Commission on Human Rights, aconstitutional office, from this enumeration is a clear denial of authority to theCommission on Appointments to review our appointments to the Commission onHuman Rights.

Furthermore, the Constitution specifically provides that this Commission isan independent officewhich:

a. must investigate all forms of human rights violations involvingcivil and political rights;

b. shall monitor the government's compliance in all our treatyobligations on human rights. We submit that, the monitoring of allagencies of government, includes even Congress itself, in theperformance of its functions which may affect human rights;

c. may call on all agencies of government for the implementationof its mandate.

The powers of the Commission on Appointments is in fact a derogation of the

Chief Executive's appointing power and therefore the grant of that authority to


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review a valid exercise of the executive power can never be presumed. It must beexpressly granted.

The Commission on Appointments has no jurisdiction under the Constitution toreview appointments by the President of Commissioners of the Commission onHuman Rights.

In view of the foregoing considerations, as Chairman of an independentconstitutional office. I cannot submit myself to the Commission on Appointmentsfor the purpose of confirming or rejecting my appointment.

Verytrulyyours,

MARYCONCEPC

IONBAUTISTA

Chairman

9

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached asAnnex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon.


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Catalino Macaraig, Jr. making reference to the "ad interimappointment which Her Excellencyextended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of theCommission on Human Rights" 10and informing Secretary Macaraig that, as previously conveyedto him in a letter of 25 January 1989, the Commission on Appointments disapproved petitionerBautista's "ad interimappointment' as Chairperson of the Commission on Human Rights in viewof her refusal to submit to the jurisdiction of the Commission on Appointments. The letter reads:

1 February 1989

HON. CATALINO MACARAIG, JR.Executive SecretaryMalacanang, Manila

S i r:

This refers to the ad interim appointment which Her Excellency extended to Atty.Mary Concepcion Bautista on 14 January 1989 as Chairperson of theCommission on Human Rights.

As we conveyed to you in our letter of 25 January 1989, the Commission onAppointments, assembled in plenary (session) on the same day, disapprovedAtty. Bautista's ad interimappointment as Chairperson of the Commission onHuman Rights in view of her refusal to submit to the jurisdiction of theCommission on Appointments.

This is to inform you that the Commission on Appointments, likewise assembledin plenary (session) earlier today, denied Senator Mamintal A. J. Tamano'smotion for reconsideration of the disapproval of Atty. Bautista's adinterimappointment as Chairperson of the Commission on Human Rights.

Verytrulyyours,


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11

On the same date (1 February 1989), the Commission on Appointments' Secretary informedpetitioner Bautista that the motion for reconsideration of the disapproval of her "adinterim appointment as Chairman of the Commission on Human Rights" was denied by theCommission on Appointments. The letter reads as follows:

1 February 1989

ATTY. MARY CONCEPCION BAUTISTACommission on Human RightsIntegrated Bar of the PhilippinesBldg. Pasig, Metro Manila

Dear Atty. Bautista:

Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission onAppointments, the denial by the Commission on Appointments, assembled inplenary (session) earlier today, of Senator Mamintal A.J. Tamano's motion forreconsideration of the disapproval of your ad interimappointment as Chairperson

of the Commission on Human Rights is respectfully conveyed.

Thank you for your attention.

Verytru

ly


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yours

,

12

In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news itemappearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President haddesignated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission"

pending the resolution of Bautista's case which had been elevated to the Supreme Court. Thenews item is here quoted in full, thus

Aquino names replacement for MaryCon

President Aquino has named replacement for Presidential Commission onHuman Rights Chairman Mary Concepcion Bautista whose appointment wasrejected anew by the Congressional commission on appointments.

The President designated PCHR commissioner Hesiquio R. Mallillin as actingchairman of the Commission pending the resolution of Bautista's case which hadbeen elevated to the Supreme Court.


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The President's action followed after Congressional Commission onAppointments Chairman, Senate President Jovito Salonga declared Bautista canno longer hold on to her position after her appointment was not confirmed for thesecond time.

For all practical purposes, Salonga said Bautista can be accused of usurpation of

authority if she insists to stay on her office.

In effect, the President had asked Bautista to vacate her office and give way toMallillin (Mari Villa) 13

On 20 January 1989, or even before the respondent Commission on Appointments had acted onher "ad interimappointment as Chairman of the Commission on Human Rights" petitionerBautista filed with this Court the present petition for certiorariwith a prayer for the immediateissuance of a restraining order, to declare "as unlawful and unconstitutional and without any legalforce and effect any action of the Commission on Appointments as well as of the Committee onJustice, Judicial and Bar Council and Human Rights, on the lawfully extended appointment of thepetitioner as Chairman of the Commission on Human Rights, on the ground that they have no

lawful and constitutional authority to confirm and to review her appointment." 14

The prayer for temporary restraining order was "to enjoin the respondent Commission onAppointments not to proceed further with their deliberation and/or proceedings on theappointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc.issued in the course of their deliberations." 15

Respondents were required to file comment within ten (10) days. 16On 7 February 1989,petitioner filed an amended petition, with urgent motion for restraining order, impleadingCommissioner Hesiquio R. Mallillin the designated acting chairman as party respondent andpraying for the nullification of his appointment. The succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to

exercise the functions of chairman and to refrain from demanding courtesy resignations fromofficers or separating or dismissing employees of the Commission.

Acting on petitioner's amended petition and supplemental urgent ex-partemotion, the Courtresolved to issue a temporary restraining order directing respondent Mallillin to cease and desistfrom effecting the dismissal, courtesy resignation, i removal and reorganization and other similarpersonnel actions. 17Respondents were likewise required to comment on said amended petitionwith allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof.

Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC andHuman Rights filed a comment to the amended petition on 21 February 1989. 18Petitioner filedher reply. 19On 24 February 1989, respondent Mallillin filed a separate comment. 20The Court

required petitioner to reply to respondent Mallillin's comment . 21Petitioner filed her reply. 22

In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal branch of government, the Court did not issue a temporary restraining order directedagainst it. However, this does not mean that the issues raised by the petition, as met by therespondents' comments, will not be resolved in this case. The Court will not shirk from its duty asthe final arbiter of constitutional issues, in the same way that it did not in Mison.

As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista wasextended by Her Excellency, the President a permanent appointment as Chairman of theCommission on Human Rights on 17 December 1988. Before this date, she was merely the"Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an

appointment that was for the President solely to make, i.e., not an appointment to be submittedfor review and confirmation (or rejection) by the Commission on Appointments. This is in


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accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is herereiterated.

The threshold question that has really come to the fore is whether the President, subsequent toher act of 17 December 1988, and after petitioner Bautista had qualified for the office to whichshe had been appointed, by taking the oath of office and actually assuming and discharging the

functions and duties thereof, could extend another appointment to the petitioner on 14January 1989, an "ad interimappointment" as termed by the respondent Commission onAppointments or any other kind of appointment to the same office of Chairman of theCommission on Human Rights that called for confirmation by the Commission on Appointments.

The Court, with all due respect to both the Executive and Legislative Departments ofgovernment, and after careful deliberation, is constrained to hold and rule in the negative. WhenHer Excellency, the President converted petitioner Bautista's designation as Acting Chairman toa permanent appointment as Chairman of the Commission on Human Rights on 17 December1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of suchappointment, she could qualify and enter upon the performance of the duties of the office (ofChairman of the Commission on Human Rights). All that remained for Bautista to do was to

reject or accept the appointment. Obviously, she accepted the appointment by taking her oath ofoffice before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assumingimmediately thereafter the functions and duties of the Chairman of the Commission on HumanRights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commissionon Human Rights was a completed act on the part of the President. To paraphrase the greatjurist, Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison. 23

xxx xxx xxx

The answer to this question seems an obvious one. The appointment being thesole act of the President, must be completely evidenced, when it is shown that hehas done everything to be performed by him.

xxx xxx xxx

Some point of time must be taken when the power of the executive over anofficer, not removable at his will must cease. That point of time must be when theconstitutional power of appointment has been exercised. And this power hasbeen exercised when the last act, required from the person possessing thepower, has been performed. ....

xxx xxx xxx

But having once made the appointment, his (the President's) power over theoffice is terminated in all cases, where by law the officer is not removable by him.The right to the office is then in the person appointed, and he has the absolute,unconditional power of accepting or rejecting it.

xxx xxx xxx

THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989

It is respondent Commission's submission that the President, after the appointment of 17December 1988 extended to petitioner Bautista, decided to extend another appointment (14January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately,

nomination) to the Commission on Appointments for confirmation. And yet, it seems obviousenough, both in logic and in fact, that no new or further appointment could be made to a position


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already filled by a previously completed appointment which had been accepted by the appointee,through a valid qualification and assumption of its duties.

Respondent Commission vigorously contends that, granting that petitioner's appointment asChairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of theConstitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within

the president's prerogative to voluntarilysubmit such appointment to the Commission onAppointment for confirmation. The mischief in this contention, as the Court perceives it, lies in thesuggestion that the President (with Congress agreeing) may, from time to time move powerboundaries, in the Constitution differently from where they are placed by the Constitution.

The Court really finds the above contention difficult of acceptance. Constitutional Law, to beginwith, is concerned with power not political convenience, wisdom, exigency, or even necessity.Neither the Executive nor the Legislative (Commission on Appointments) can create powerwhere the Constitution confers none. The evident constitutional intent is to strike a careful anddelicate balance, in the matter of appointments to public office, between the President andCongress (the latter acting through the Commission on Appointments). To tilt one side or theother of the scale is to disrupt or alter such balance of power. In other words, to the extent that

the Constitution has blocked off certain appointments for the President to make with theparticipation of the Commission on Appointments, so also has the Constitution mandated that thePresident can confer no power of participation in the Commission on Appointments over otherappointments exclusively reserved for her by the Constitution. The exercise of political optionsthat finds no support in the Constitution cannot be sustained.

Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimitedpower to review presidential appointments, create power to confirm appointments that theConstitution has reserved to the President alone. Stated differently, when the appointment is onethat the Constitution mandates is for the President to make without the participation of theCommission on Appointments, the executive's voluntary act of submitting such appointment tothe Commission on Appointments and the latter's act of confirming or rejecting the same, are

done without or in excess of jurisdiction.

EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ONAPPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELYBELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENTCOULD BE MADE ON 14 JANUARY 1989

Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allowthe Commission on Appointments to exercise the power of review over an appointment otherwisesolely vested by the Constitution in the President. Yet, as already noted, when the Presidentappointed petitioner Bautista on 17 December 1988 to the position of Chairman of theCommission on Human Rights with the advice to her that by virtue of such appointment (not, until

confirmed by the Commission on Appointments), she could qualify and enter upon theperformance of her duties after taking her oath of office, the presidential act of appointment to thesubject position which, under the Constitution, is to be made, in the first place, without theparticipation of the Commission on Appointments, was then and there a complete and finishedact, which, upon the acceptance by Bautista, as shown by her taking of the oath of office andactual assumption of the duties of said office, installed her, indubitably and unequivocally, as thelawful Chairman of the Commission on Human Rights for a term of seven (7) years. There wasthus no vacancy in the subject office on 14 January 1989 to which an appointment could bevalidly made. In fact, there is no vacancy in said office to this day.

Nor can respondents impressively contend that the new appointment or re-appointment on 14January 1989 was an ad interimappointment, because, under the Constitutional design, ad

interimappointments do not apply to appointments solely for the President to make, i.e., withoutthe participation of the Commission on Appointments.Ad interimappointments, by their very


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nature under the 1987 Constitution, extend only to appointments where the review of theCommission on Appointments is needed. That is why ad interimappointments are to remain validuntil disapproval by the Commission on Appointments or until the next adjournment of Congress;but appointments that are for the President solely to make, that is, without the participation of theCommission on Appointments, can not be ad interimappointments.

EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THECHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THEPLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.

Respondent Mallillin contends that with or without confirmation by the Commission onAppointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can beremoved from said office at anytime, at the pleasure of the President; and that with thedisapproval of Bautista's appointment (nomination) by the Commission on Appointments, therewas greater reasonfor her removal by the President and her replacement with respondentMallillin Thus, according to respondent Mallillin the petition at bar has become moot andacademic.

We do not agree that the petition has become moot and academic. To insist on such a posture isakin to deluding oneself that day is night just because the drapes are drawn and the lights areon. For, aside from the substantive questions of constitutional law raised by petitioner, therecords clearly show that petitioner came to this Court in timely manner and has not shown anyindication of abandoning her petition.

Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full textof which is as follows:

WHEREAS, the Constitution does not prescribe the term of office of theChairman and Members of the Commission on Human Rights unlike those ofother Constitutional Commissions;

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, dohereby order:

SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is herebyamended to read as follows:

The Chairman and Members of the Commission on Human Rights shall beappointed by the President. Their tenure in office shall be at the pleasure of thePresident.

SEC. 2. This Executive Order shall take effect immediately. DONE in the City ofManila, this 30th day of June, in the year of Our Lord, nineteen hundred andeighty-seven.

(Sgd.)CORA


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ZONC.

AQUINOPres

identofthe

Philippines

By the President:

(Sgd.) JOKER P. ARROYOExecutive Secretary 24

Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25wasissued by the President, Sec. 2(c) of which provides:

Sec. 2(c). The Chairman and the Members of the Commission on Human Rightsshall be appointed by the President for a term of seven years withoutreappointment. Appointments to any vacancy shall be only for the unexpired termof the predecessor.


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It is to be noted that, while the earlier executive order (No. 163) speaks of a term of officeof theChairman and Members of the Commission on Human Rightswhich is seven (7) yearswithout reappointmentthe later executive order (163-A) speaks of the tenure inofficeof theChairman and Members of the Commission on Human Rights, which is "at the pleasure of thePresident."

Tenurein office should not be confused with term of office. As Mr. Justice (later, Chief Justice)Concepcion in his concurring opinion inAlba vs. Evangelista, 26stated:

The distinction between "term" and "tenure" is important, for, pursuant to theConstitution, "no officer or employee in the Civil Service may be removed orsuspended except for cause, as provided by law" (Art. XII, section 4), and thisfundamental principle would be defeated if Congress could legally make the tenure ofsome officials dependent upon the pleasure of the President, by clothing the latterwith blanket authority to replace a public officer before the expiration of his term. 27

When Executive Order No. 163 was issued, the evident purpose was to comply with theconstitutional provision that "the termof office and other qualifications and disabilities of the

Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII,1987 Constitution).

As the term of officeof the Chairman (and Members) of the Commission on Human Rights, isseven (7) years, without reappointment, as provided by Executive Order No. 163, and consistentwith the constitutional design to give the Commission the needed independence to perform andaccomplish its functions and duties, the tenure in officeof said Chairman (and Members) cannotbe later made dependent on the pleasure of the President.

Nor can respondent Mallillin find support in the majority opinion in theAlbacase, supra, becausethe power of the President, sustained therein, to replace a previously appointed vice-mayor ofRoxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas)

stating that the vice-mayor shall serve at the pleasure of the President, can find no application tothe Chairman of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself.Besides, unlike in the Alba case, here the Constitution has decreed that the Chairman andMembers of the Commission on Human Rights shall have a "term of office."

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and createdby the Constitution to be independent as the Commission on Human Rights-and vested with thedelicate and vital functions of investigating violations of human rights, pinpointing responsibilityand recommending sanctions as well as remedial measures therefor, can truly function withindependence and effectiveness, when the tenurein officeof its Chairman and Members is madedependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to theconstitutional mandate of independence for the Commission on Human Rights has to be

declared unconstitutional.

The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of itsconstitutional destruction. The proceedings in the 1986 Constitutional Commission clearly pointto its being plainly at war with the constitutional intent of independence for the Commission. Thus

MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for thisbody to be constitutionalized is the fact that regardless of who is the President orwho holds the executive power, the human rights issue is of such importance thatit should be safeguarded and it should be independent of political parties orpowers that are actually holding the reins of government. Our experience during

the martial law period made us realize how precious those rights are and,therefore, these must be safeguarded at all times.


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xxx xxx xxx

MR. GARCIA. I would like to state this fact: Precisely we do not want the term or thepower of the Commission on Human Rights to be coterminous with the president,because the President's power is such that if he appoints a certain commissioner andthat commissioner is subject to the President, therefore, any human rights violations

committed under the person's administration will be subject to presidential pressure.That is what we would like to avoid to make the protection of human rights gobeyond the fortunes of different political parties or administrations in power. 28

xxx xxx xxx

MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorableChief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that thereshould be an independent Commission on Human Rights free from executiveinfluence because many of the irregularities on human rights violations are committedby members of the armed forces and members of the executive branch of thegovernment. So as to insulate this body from political interference, there is a need to

constitutionalize it.

29

xxx xxx xxx

MR. SARMIENTO: On the inquiry on whether there is a need for this to beconstitutionalized, I would refer to a previous inquiry that there is still a need formaking this a constitutional body free or insulated from interference. I conferred withformer Chief Justice Concepcion and the acting chairman of the PresidentialCommittee on Human Rights, retired Justice J.B.L. Reyes, and they are one in sayingthat this body should be constitutionalized so that it will be free from executive controlor interferences, since many of the abuses are committed by the members of themilitary or the armed forces. 30

xxx xxx xxx

MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if weleave it to Congress, this commission will be within the reach of politicians and ofpublic officers and that to me is dangerous. We should insulate this body frompolitical control and political interference because of the nature of its functions toinvestigate all forms of human rights violations which are principally committed bymembers of the military, by the Armed Forces of the Philippines. 31

xxx xxx xxx

MR. GARCIA. The critical factor here is political control, and normally, when a body is

appointed by Presidents who may change, the commission must remain above thesechanges in political control. Secondly, the other important factor to consider are thearmed forces, the police forces which have tremendous power at their command and,therefore, we would need a commission composed of men who also are beyond thereach of these forces and the changes in political administration. 32

xxx xxx xxx

MR MONSOD. Yes, It is the committee's position that this proposed special body, inorder to function effectively, must be invested with an independence that is necessarynot only for its credibility but also for the effectiveness of its work. However, we wantto make a distinction in this Constitution. May be what happened was that it was

referred to the wrong committee. In the opinion of the committee, this need not be a


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commission that is similar to the three constitutional commissions like the COA, theCOMELEC, and the Civil Service. It need not be in that article. 33

xxx xxx xxx

MR. COLAYCO. The Commissioners earlier objection was that the Office of thePresident is not involved in the project. How sure are we that the next President ofthe Philippines will be somebody we can trust? Remember, even now there is agrowing concern about some of the bodies, agencies and commission created byPresident Aquino. 34

xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights is givingless importance to a truly fundamental need to set up a body that will effectivelyenforce the rules designed to uphold human rights. 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE

To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office ofChairman of the Commission on Human Rights by virtue of her appointment, as such, by thePresident on 17 December 1988, and her acceptance thereof, is not to say that she cannot beremoved from office before the expiration of her seven (7) year term. She certainly can beremoved but her removal must be for cause and with her right to due process properlysafeguarded. In the case of NASECO vs. NLRC, 36this Court held that before a rank-and-fileemployee of the NASECO, a government-owned corporation, could be dismissed, she wasentitled to a hearing and due process. How much more, in the case of the Chairman ofa constitutionallymandated INDEPENDENT OFFICE, like the Commission on Human Rights.

If there are charges against Bautista for misfeasance or malfeasance in office, charges may be

filed against her with the Ombudsman. If he finds aprima faciecase against her, thecorresponding information or informations can be filed with the Sandiganbayan which may in turnorder her suspension from office while the case or cases against her are pending before saidcourt. 37This is due process in action. This is the way of a government of laws and not of men.

A FINAL WORD

It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista hadelevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for theCommission on Human Rights (pending decision in this case) instead of appointing anotherpermanent Chairman. The latter course would have added only more legal difficulties to analready difficult situation.

WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the dulyappointed Chairman of the Commission on Human Rights and the lawful incumbent thereof,entitled to all the benefits, privileges and emoluments of said office. The temporary restrainingorder heretofore issued by the Court against respondent Mallillin enjoining him from dismissing orterminating personnel of the Commission on Human Rights is made permanent.

SO ORDERED.

Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes and Regalado, JJ.,concur.

Fernan, C.J., took no part, having administered petitioner's oath of office.


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Sarmiento, J., took no part, respondent Mallillin is my godson.

Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion

With all due respect for the contrary view of the majority in the Court, I maintain that it is askingtoo much to expect a constitutional ruling which results in absurd or irrational consequences toever become settled.

The President and Congress, the appointees concerned, and the general public may in time

accept the Sarmiento III v. Misonruling because this Court has the final word on whatconstitutional provisions are supposed to mean but the incongruity will remain sticking out like asore thumb. Serious students of the Constitution will continue to be disturbed until the meaning ofthe consent power of the Commission on Appointments is straightened out either through a re-examination of this Court's decision or an amendment to the Constitution.

Section 16, Article VII of the Constitution consists of only three sentences. The officers specifiedin the first sentence clearly require confirmation by the Commission on Appointments. Theofficers mentioned in the third sentence just as clearly do not require confirmation. The problemarea lies with those in the second sentence.

I submit that we should re-examine the three groups of presidential appointees under the three

sentences of Section 16.

The first group are the heads of executive departments, ambassadors, other public ministers andconsuls, officers of the armed forces from colonel or naval captain, and other officers whoseappointments are vested in the President by the Constitution. The first sentence of Section 16state they must be confirmed by the Commission on Appointments.

The third group are officers lower in rank whose appointments Congress has by law vested in thePresident alone. They need no confirmation.

The second group of presidential appointees are "all other officers of the Government whoseappointments are not otherwise provided for by law and those whom he may be authorized by

law to appoint." To which group do they belong?-Group I requiring confirmation or Group 3 whereconfirmation is not needed?

No matter how often and how long I read the second sentence of Section 16, I simply cannotassociate the officers mentioned therein as forming part of those referred to in the third sentence.

Why am I constrained to hold this view?

(1) If the officers in the first group are the only appointees who need confirmation, there would beno need for the second and third sentences of Section 16. They become superfluous. Any onenot falling under an express listing would need no confirmation. I think the Court is wrong intreating two carefully crafted and significant provisions of the fundamental law as superfluities.Except for the most compelling reasons, which do not exist here, no constitutional provisionshould be considered a useless surplusage.


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Unfortunately, we cannot have one reading of Section 16 for popular Presidents and anotherinterpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section16 was intended to check abuse or ill-considered appointments by a President who belongs tothe latter class.

It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly

represents the people. We should not expect Congress to act only as the selfless Idealists, thewell-meaning technocrats, the philosophers, and the coffee-shop pundits would have it move.The masses of our people are poor and underprivileged, without the resources or the time to getpublicly involved in the intricate workings of Government, and often ill-informed or functionallyilliterate. These masses together with the propertied gentry and the elite class can express theirdivergent views only through their Senators and Congressmen. Even the buffoons and retardatesdeserve to have their interests considered and aired by the people's representatives. In thedemocracy we have and which we try to improve upon, the Commission on Appointments cannotbe expected to function like a mindless machine without any debates or even imperfections. Thediscussions and wranglings, the delays and posturing are part of the democratic process. Theyshould never be used as arguments to restrict legislative power where the Constitution does notexpressly provide for such a limitation.

The Commission on Human Rights is a very important office. Our country is beset by widespreadinsurgency, marked inequity in the ownership and enjoyment of wealth and political power, anddangerous conflicts arising from Ideological, ethnic and religious differences. The tendency touse force and violent means against those who hold opposite views appears irresistible to theholders of both governmental and rebel firepower.

The President is doubly careful in the choice of the Chairman and Members of the Commissionon Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointmentsto be a joint responsibility of the Presidency and Congress, through the Commission onAppointments. She wants a more thorough screening process for these sensitive positions. Shewants only the best to survive the process.

Why should we tell both the President and Congress that they are wrong.?

Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebelconcentrations should receive greater scrutiny in his appointment than the Chairman of theHuman Rights Commission who has infinitely more power and opportunity to bring the rebellionto a just and satisfactory end.

But even if I were to agree with the Sarmiento III v. Misonruling, I would still include theChairman of the Human Rights Commission as one of the "other officers whose appointmentsare vested in him in this Constitution" under the first sentence of Section 16, Article VII. Certainly,the chairman cannot be appointed by Congress or the Supreme Court. Neither should we read

Article XIII of the Constitution as classifying the chairman among the lower ranking officers whoby law may be appointed by the head of an executive department, agency, commission, orboard. The Constitution created the independent office. The President was intended to appointits chairman.

I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Misonruling and join in thecall for a re-examination of its doctrine.

CRUZ, J., dissenting:

This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adoptedby the Court more than a year ago over two dissents. The President of the Philippines has takena second look at it, and so too has the Commission on Appointments representing both Housesof the Congress of the Philippines. It appears that they are not exactly certain now that the


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decision in that case was correct after all. I believe it will not be amiss for us too, in a spirit ofhumility, to read the Constitution again on the possibility that we may have misread it before.

Theponencia assumes that we were right the first time and that the Mison case is settledthere is no need to re-examine it. It therefore approaches the problem at hand from anotherperspective and would sustain the petitioner on an additional ground.

The theory is that the petitioner's first appointment on 17 December 1988 was valid even if notconfirmed, conformably to Mison, and could not be replaced with the second appointment on 14January 1989 because there was no vacancy to fill. By this reasoning, the opinion woulddefinitely avoid the question squarely presented to the Court, viz., whether or not the Chairmanof the Commission on Human Rights is subject to confirmation as required now by both thePresident of the Philippines and the Commission on Appointments. In effect, we are asked toreconsider the Mison ruling in the light of this supervening significant albeit decidedly notcontrolling circumstance.

The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think wemust address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-see-it-now-you-don't.

As one who never agreed with the bison ruling in the first place, I suspect that the seemingdiffidence in applying it categorically to the case at bar is due to a degree of uneasiness over itscorrectness. I think this is the reason another justification had to be offered to bolster Mison.

In my dissent in Alison, I specifically mentioned the Chairman of the Commission on HumanRights as among the important officers who would not have to be confirmed if the majority viewwere to be followed. By contrast, and inexplicably, the colonel in the armed forces would needconfirmation although he is not a constitutional officer with the serious responsibilities of theformer. Also not to be confirmed are the Governor of the Central Bank unlike the relatively minormultisectoral representative of the regional consultative commission, and the Undersecretary ofForeign Affairs although the consul, who is his subordinate, would need confirmation. When Ipointed to these incongruous situations, I was told it was not our place to question the wisdom ofthe Constitution. What I was questioning was not the wisdom of the Constitution but the wisdomof our interpretation which I said would lead to absurd consequences. But only Justice Gutierrezagreed with me.

Now the chickens have come home to roost. The petitioner asks us to unequivocally apply ourown ruling in Alison, but we are equivocating. Theponenciawould sustain the petitioner by acircumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.

As I see it, the submission of the petitioner's appointment to the Commission on Appointments isa clear indication that the President of the Philippines no longer agrees with the Mison, ruling, atleast insofar as it applies to the present case. Signifi cantly the Commission on Appointments,which was also aware of Mison, has as clearly rejected it by acting on the appointment. Thesemeaningful developments must give us pause. We may have committed an error in Mison, whichis bad enough, and may be persisting in it now, which is worse.

Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent withmy view in Mison, I submit that what President Aquino extended to the petitioner on 17December 1988 was an ad interim appointment that although immediately effective uponacceptance was still subject to confirmation. I cannot agree that when the President said thepetitioner could and enter into the performance of her duties, "all that remained for Bautista to dowas to reject or accept the appointment." In fact, on the very day it was extended, the adinterimappointment was submitted by the President of the Philippines to the Commission on

Appointments "for confirmation."


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Theponencia says that the appointment did not need any confirmation, being the sole act of thePresident under the Mison ruling. That would have settled the question quite conclusively, but theopinion goes on to argue another justification that I for one find unnecessary, not to sayuntenable. I sense here a palpable effort to bolster Mison because of the apprehension that it isfalling apart.

Of course, there was no vacancy when the nomination was made on 14 January 1989. There isno question that the petitioner was still validly holding the office by virtue of her adinterimappointment thereto on 17 December 1988. The nomination made later was unnecessarybecause the ad interimappointment was still effective. When the Commission on Appointmentssent the petitioner the letters dated 9 January 1989 and 10 January 1989 requiring her to submitcertain data and inviting her to appear before it, it was acting not on the nomination but on the adinterimappointment. What was disapproved was the adinterimappointment, not the nomination.The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best, itis important only as an affirmation of the President's acknowledgment that the Chairman of theCommission on Human Rights must be confirmed under Article VII, Section 16 of theConstitution.

It does not follow, of course, that simply because the President of the Philippines has changedher mind, and with the expressed support of the Commission on Appointments, we shoulddocilely submit and reverse Mison. That is not how democracy works. The Court is independent.I do suggest, however, that the majority could have erred in that case and that the least we cando now is to take a more careful look at the decision. Let us check our bearings to make sure wehave not gone astray. That is all I ask

I repeat my view that the Chairman of the Commission on Human Rights is subject toconfirmation by the Commission on Appointments, for the reasons stated in my dissent in MisonAccordingly, I vote to DENY the petition.

GRIO-AQUINO, J.:dissenting:

I believe that the appointments of the chairman and the members of the Commission on HumanRights by the President require review and confirmation by the Commission on Appointments inview of the following provision of Section 16, Article VII of the 1987 Constitution:

SEC. 16. The President shall nominate and, with the consent of the Commissionon Appointments, appoint the heads of the executive departments, ambassadors,other public ministers and consuls, or officers of the armed forces from the rankof colonel or naval captain, and other officers whose appointments are vested inhim in this Constitution....

In my view, the "other officers" whose appointments are vested in the President in theConstitution are theconstitutional officers, meaning those who hold offices created under theConstitution, and whose appointments are not otherwise provided for in the Charter. Thoseconstitutional officers are the chairmen and members of the Constitutional Commissions, namely:the Civil Service Commission (Art. IX-B), the Commission on Elections (Art. IX-C), theCommission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII). Theseconstitutional commissions are, without excaption, declared to be "independent," but while in thecase of the Civil Service Commission, the Commission on Elections and the Commission onAudit, the 1987 Constitution expressly provides that "the Chairman and the Commissioners shallbe appointed by the President with the consent of the Commission on Appointments" (Sec. 1[2],Art. IX-B; Sec. 1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is found in Section 17,Article VIII creating the Commission on Human Rights. Its absence, however, does not detractfrom, or diminish, the President's power to appoint the Chairman and Commissioners of the said

Commission. The source of that power is the first sentence of Section 16, Article VII of theConstitution for:


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(1) the Commission on Human Rights is an office created by the Constitution, and

(2) the appointment of the Chairman and Commissioners thereof is vested in the President bythe Constitution.

Therefore, the said appointments shall be made by the President with the consent of theCommission on Appointments, as provided in Section 16, Article VII of the Constitution.

It is not quite correct to argue, as the petitioner does, that the power of the Commission onAppointments to review and confirm appointments made by the President is a "derogation of theChief Executive's appointing power." That power is given to the Commission on Appointments aspart of the system of checks and balances in the democratic form of government provided for inour Constitution. As stated by a respected constitutional authority, former U.P. Law Dean andPresident Vicente G. Sinco:

The function of confirming appointments is part of the power of appointment itself.It is, therefore, executive rather than legislative in nature. In giving this power toan organ of the legislative department, the Constitution merely provides a detailin the scheme of checks and balances between the executive and legislativeorgans of the government. (Phil. Political Law by Sinco, 11th ed., p. 266).

WHEREFORE, I vote to dismiss the petition.

Medialdea, J., dissenting:

Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion

With all due respect for the contrary view of the majority in the Court, I maintain that it is askingtoo much to expect a constitutional ruling which results in absurd or irrational consequences toever become settled.

The President and Congress, the appointees concerned, and the general public may in timeaccept the Sarmiento III v. Misonruling because this Court has the final word on whatconstitutional provisions are supposed to mean but the incongruity will remain sticking out like asore thumb. Serious students of the Constitution will continue to be disturbed until the meaning of

the consent power of the Commission on Appointments is straightened out either through a re-examination of this Court's decision or an amendment to the Constitution.

Section 16, Article VII of the Constitution consists of only three sentences. The officers specifiedin the first sentence clearly require confirmation by the Commission on Appointments. Theofficers mentioned in the third sentence just as clearly do not require confirmation. The problemarea lies with those in the second sentence.

I submit that we should re-examine the three groups of presidential appointees under the threesentences of Section 16.

The first group are the heads of executive departments, ambassadors, other public ministers andconsuls, officers of the armed forces from colonel or naval captain, and other officers whose


25/31

appointments are vested in the President by the Constitution. The first sentence of Section 16state they must be confirmed by the Commission on Appointments.

The third group are officers lower in rank whose appointments Congress has by law vested in thePresident alone. They need no confirmation.

The second group of presidential appointees are "all other officers of the Government whoseappointments are not otherwise provided for by law and those whom he may be authorized bylaw to appoint." To which group do they belong?-Group I requiring confirmation or Group 3 whereconfirmation is not needed?

No matter how often and how long I read the second sentence of Section 16, I simply cannotassociate the officers mentioned therein as forming part of those referred to in the third sentence.

Why am I constrained to hold this view?

(1) If the officers in the first group are the only appointees who need confirmation, there would be

no need for the second and third sentences of Section 16. They become superfluous. Any onenot falling under an express listing would need no confirmation. I think the Court is wrong intreating two carefully crafted and significant provisions of the fundamental law as superfluities.Except for the most compelling reasons, which do not exist here, no constitutional provisionshould be considered a useless surplusage.

(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority viewresults in the absurd consequence where one of several hundred colonels and naval captainsmust be confirmed but such important officers as the Governor of the Central Bank with broadpowers over the nation's economy and future stability or the Chairman of the Commission onHuman Rights whose office calls for no less than a constitutional mandate do not have to bescrutinized by the Commission on Appointments. Why should a minor consul to Timbuktu, Malineed the thorough scrutiny during the confirmation process while the Undersecretary of ForeignAffairs who sends him there and who exercises control over his acts can be appointed by thePresident alone? Why should we interpret Section 16 in such a strange and irrational mannerwhen no strained construction is needed to give it a logical and more traditional andunderstandable meaning.?

(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we seethe word "also" in a sentence, we associate it with preceding sentences, never with the differentsentence that follows. On the other hand, the third sentence specifies "other officers lower inrank' who are appointed pursuant to law by the President "alone." This can only mean that thehigher ranking officers in the second sentence must alsobe appointed with the concurrence ofthe Commission on Appointments. When the Constitution requires Congress to specify who maybe appointed by the President alone, we should not add other and higher ranking officers as alsoappointed by her alone.The strained interpretation by the Court's majority makes the word"alone" meaningless if the officers to whom "alone" is not appended are also included in the thirdgroup.

(4) The third sentence of Section 16 requires a positive act of Congress which vests anappointment in the President alone before such an appointment is freed from the scrutiny of theCommission on Appointments. By express constitutional mandate, it is Congress whichdetermines who do not need confirmation. Under the majority ruling of the Court, if Congresscreates an important office and requires the consent of the Commission before a presidentialappointment to that office is perfected, such a requirement would be unconstitutional. I believethat the Constitution was never intended to so restrict the lawmaking power. The Court has nojurisdiction to limit the plenary lawmaking power of the people's elected representatives through

an implied and, I must again add, a strained reading of the plain text of Section 16. Anyrestriction of legislative power must be categorical, express, and specific-never implied or forced.


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(5) The Constitution specifies clearly the presidential appointees who do not need confirmationby the Commission. The reason for non-confirmation is obvious. The members of the SupremeCourt and all lower courts and the Ombudsman and his deputies are not confirmed because theJudicial and Bar Council screens nominees before their names are forwarded to the President.The Vice-President as a cabinet member needs no confirmation because the Constitution saysso. He or she is chosen by the nation's entire electorate and is only a breath away from the

Presidency. Those falling under the third sentence of Section 16, Article VII do not have to beconfirmed because the Constitution gives Congress the authority to free lower ranking officialswhose positions are created by law from that requirement. I believe that we in the Court have nopower to add by implication to the list of presidential appointees whom the Constitution in clearand categorical words declares as not needing confirmation.

(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is animportant constitutional body which helps give fuller expression to the democratic principlesinherent in our presidential form of government.

There are those who would render innocuous the Commission's power or perhaps even move forits abolition as a protest against what they believe is too much horsetrading or sectarian politics

in the exercise of its functions. Since the President is a genuinely liked and popular leader,personally untouched by scandal, who appears to be motivated only by the sincerest ofintentions, these people would want the Commission to routinely rubberstamp those whom sheappoints to high office.

Unfortunately, we cannot have one reading of Section 16 for popular Presidents and anotherinterpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section16 was intended to check abuse or ill-considered appointments by a President who belongs tothe latter class.

It is not the judiciary and certainly not the appointed bureaucracy but Congress which trulyrepresents the people. We should not expect Congress to act only as the selfless Idealists, the

well-meaning technocrats, the philosophers, and the coffee-shop pundits would have it move.The masses of our people are poor and underprivileged, without the resources or the time to getpublicly involved in the intricate workings of Government, and often ill-informed or functionallyilliterate. These masses together with the propertied gentry and the elite class can express theirdivergent views only through their Senators and Congressmen. Even the buffoons and retardatesdeserve to have their interests considered and aired by the people's representatives. In thedemocracy we have and which we try to improve upon, the Commission on Appointments cannotbe expected to function like a mindless machine without any debates or even imperfections. Thediscussions and wranglings, the delays and posturing are part of the democratic process. Theyshould never be used as arguments to restrict legislative power where the Constitution does notexpressly provide for such a limitation.

The Commission on Human Rights is a very important office. Our country is beset by widespreadinsurgency, marked inequity in the ownership and enjoyment of wealth and political power, anddangerous conflicts arising from Ideological, ethnic and religious differences. The tendency touse force and violent means against those who hold opposite views appears irresistible to theholders of both governmental and rebel firepower.

The President is doubly careful in the choice of the Chairman and Members of the Commissionon Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointmentsto be a joint responsibility of the Presidency and Congress, through the Commission onAppointments. She wants a more thorough screening process for these sensitive positions. Shewants only the best to survive the process.

Why should we tell both the President and Congress that they are wrong.?


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Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebelconcentrations should receive greater scrutiny in his appointment than the Chairman of theHuman Rights Commission who has infinitely more power and opportunity to bring the rebellionto a just and satisfactory end.

But even if I were to agree with the Sarmiento III v. Misonruling, I would still include the

Chairman of the Human Rights Commission as one of the "other officers whose appointmentsare vested in him in this Constitution" under the first sentence of Section 16, Article VII. Certainly,the chairman cannot be appointed by Congress or the Supreme Court. Neither should we readArticle XIII of the Constitution as classifying the chairman among the lower ranking officers whoby law may be appointed by the head of an executive department, agency, commission, orboard. The Constitution created the independent office. The President was intended to appointits chairman.

I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Misonruling and join in thecall for a re-examination of its doctrine.

CRUZ, J., dissenting:

This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adoptedby the Court more than a year ago over two dissents. The President of the Philippines has takena second look at it, and so too has the Commission on Appointments representing both Housesof the Congress of the Philippines. It appears that they are not exactly certain now that thedecision in that case was correct after all. I believe it will not be amiss for us too, in a spirit ofhumility, to read the Constitution again on the possibility that we may have misread it before.

Theponencia assumes that we were right the first time and that the Mison case is settledthereis no need to re-examine it. It therefore approaches the problem at hand from anotherperspective and would sustain the petitioner on an additional ground.

The theory is that the petitioner's first appointment on 17 December 1988 was valid even if notconfirmed, conformably to Mison, and could not be replaced with the second appointment on 14January 1989 because there was no vacancy to fill. By this reasoning, the opinion woulddefinitely avoid the question squarely presented to the Court, viz., whether or not the Chairmanof the Commission on Human Rights is subject to confirmation as required now by both thePresident of the Philippines and the Commission on Appointments. In effect, we are asked toreconsider the Mison ruling in the light of this supervening significant albeit decidedly notcontrolling circumstance.

The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think wemust address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-see-it-now-you-don't.

As one who never agreed with the bison ruling in the first place, I suspect that the seemingdiffidence in applying it categorically to the case at bar is due to a degree of uneasiness over itscorrectness. I think this is the reason another justification had to be offered to bolster Mison.

In my dissent in Alison, I specifically mentioned the Chairman of the Commission on HumanRights as among the important officers who would not have to be confirmed if the majority viewwere to be followed. By contrast, and inexplicably, the colonel in the armed forces would needconfirmation although he is not a constitutional officer with the serious responsibilities of theformer. Also not to be confirmed are the Governor of the Central Bank unlike the relatively minormultisectoral representative of the regional consultative commission, and the Undersecretary ofForeign Affairs although the consul, who is his subordinate, would need confirmation. When Ipointed to these incongruous situations, I was told it was not our place to question the wisdom ofthe Constitution. What I was questioning was not the wisdom of the Constitution but the wisdom


28/31

of our interpretation which I said would lead to absurd consequences. But only Justice Gutierrezagreed with me.

Now the chickens have come home to roost. The petitioner asks us to unequivocally apply ourown ruling in Alison, but we are equivocating. Theponenciawould sustain the petitioner by acircumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.

As I see it, the submission of the petitioner's appointment to the Commission on Appointments isa clear indication that the President of the Philippines no longer agrees with the Mison, ruling, atleast insofar as it applies to the present case. Signifi cantly the Commission on Appointments,which was also aware of Mison, has as clearly rejected it by acting on the appointment. Thesemeaningful developments must give us pause. We may have committed an error in Mison, whichis bad enough, and may be persisting in it now, which is worse.

Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent withmy view in Mison, I submit that what President Aquino extended to the petitioner on 17December 1988 was an ad interim appointment that although immediately effective uponacceptance was still subject to confirmation. I cannot agree that when the President said thepetitioner could and enter into the performance of her duties, "all that remained for Bautista to dowas to reject or accept the appointment." In fact, on the very day it was extended, the adinterimappointment was submitted by the President of the Philippines to the Commission onAppointments "for confirmation."

Theponencia says that the appointment did not need any confirmation, being the sole act of thePresident under the Mison ruling. That would have settled the question quite conclusively, but theopinion goes on to argue another justification that I for one find unnecessary, not to sayuntenable. I sense here a palpable effort to bolster Mison because of the apprehension that it isfalling apart.

Of course, there was no vacancy when the nomination was made on 14 January 1989. There isno question that the petitioner was still validly holding the office by virtue of her adinterimappointment thereto on 17 December 1988. The nomination made later was unnecessarybecause the ad interimappointment was still effective. When the Commission on Appointmentssent the petitioner the letters dated 9 January 1989 and 10 January 1989 requiring her to submitcertain data and inviting her to appear before it, it was acting not on the nomination but on the adinterimappointment. What was disapproved was the adinterimappointment, not the nomination.The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best, itis important only as an affirmation of the President's acknowledgment that the Chairman of theCommission on Human Rights must be confirmed under Article VII, Section 16 of theConstitution.

It does not follow, of course, that simply because the President of the Philippines has changed

her mind, and with the expressed support of the Commission on Appointments, we shoulddocilely submit and reverse Mison. That is not how democracy works. The Court is independent.I do suggest, however, that the majority could have erred in that case and that the least we cando now is to take a more careful look at the decision. Let us check our bearings to make sure wehave not gone astray. That is all I ask

I repeat my view that the Chairman of the Commission on Human Rights is subject toconfirmation by the Commission on Appointments, for the reasons stated in my dissent in MisonAccordingly, I vote to DENY the petition.

GRIO-AQUINO, J.:dissenting:


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I believe that the appointments of the chairman and the members of the Commission on HumanRights by the President require review and confirmation by the Commission on Appointments inview of the following provision of Section 16, Article VII of the 1987 Constitution:

SEC. 16. The President shall nominate and, with the consent of the Commissionon Appointments, appoint the heads of the executive departments, ambassadors,

other public ministers and consuls, or officers of the armed forces from the rankof colonel or naval captain, and other officers whose appointments are vested inhim in this Constitution....

In my view, the "other officers" whose appointments are vested in the President in theConstitution are theconstitutional officers, meaning those who hold offices created under theConstitution, and whose appointments are not otherwise provided for in the Charter. Thoseconstitutional officers are the chairmen and members of the Constitutional Commissions, namely:the Civil Service Commission (Art. IX-B), the Commission on Elections (Art. IX-C), theCommission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII). Theseconstitutional commissions are, without excaption, declared to be "independent," but while in thecase of the Civil Service Commission, the Commission on Elections and the Commission on

Audit, the 1987 Constitution expressly provides that "the Chairman and the Commissioners shallbe appointed by the President with the consent of the Commission on Appointments" (Sec. 1[2],Art. IX-B; Sec. 1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is found in Section 17,Article VIII creating the Commission on Human Rights. Its absence, however, does not detractfrom, or diminish, the President's power to appoint the Chairman and Commissioners of the saidCommission. The source of that power is the first sentence of Section 16, Article VII of theConstitution for:

(1) the Commission on Human Rights is an office created by the Constitution, and

(2) the appointment of the Chairman and Commissioners thereof is vested in the President bythe Constitution.

Therefore, the said appointments shall be made by the President with the consent of theCommission on Appointments, as provided in Section 16, Article VII of the Constitution.

It is not quite correct to argue, as the petitioner does, that the power of the Commission onAppointments to review and confirm appointments made by the President is a "derogation of theChief Executive's appointing power." That power is given to the Commission on Appointments aspart of the system of checks and balances in the democratic form of government provided for inour Constitution. As stated by a respected constitutional authority, former U.P. Law Dean andPresident Vicente G. Sinco:

The function of confirming appointments is part of the power of appointment itself.It is, therefore, executive rather than legislative in nature. In giving this power toan organ of the legislative department, the Constitution merely provides a detailin the scheme of checks and balances between the executive and legislativeorgans of the government. (Phil. Political Law by Sinco, 11th ed., p. 266).

WHEREFORE, I vote to dismiss the petition.

Medialdea, J., dissenting:

Footnotes

1 G.R. No. 79974, 17 December 1987, 156 SCRA 549.


30/31

2 See Section 2 (B), Section 2(C), and Section 2(D), Article IX, 1987 Constitution.

3 Annex A, Petition, Rollo, p. 8.

4 Sec. 17(l), Art. XIII, 1987 Constitution.

5 Annex B, Petition, Rollo, p. 9.

6 Annex C, Petition, Rollo, p. 10.

7 Annex D, Petition, Rollo, p. 11-1 3.

8 Annex D-1, Petition, Rollo, p. 14.

9 Annex E, Petition, Rollo, pp. 15-16.

10 Emphasis supplied.

11 Annex 1, Commission's comment, Rollo, p. 53.



14 Rollo, p. 5.

15 Rollo, pp. 5-6.

16 Resolution of 2 February 1989, Rollo, p. 17.

17 Resolution of 9 February 1989, Rollo, p. 92.

18 Rollo, pp. 145-150.

19 Rollo, pp. 100-144.

20 Rollo, pp. 153-183.

21 Resolution of 28 February 1989, Rollo, p. 183-A.

22 Rollo, pp. 189-201.

23 1 Cranch 60, 2 Law Ed., U.S. 5-8.

24 Official Gazette, Vol. 83, July 29, 1987, p. 3307.

25 Official Gazette, Vol. 83, May 11, 1987, p. 2270.

26 100 Phil. at 683.

27 100 Phil. at 694.


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28 Record of the 1986 Constitutional Commission, Vol. 3, August 26,1986, p.718.

29 Ibid., P. 728.

30 Ibid., P. 730.

31 Ibid., P. 734.

32 Ibid., P. 737.

33 Ibid., p. 743.

34 Ibid., p. 747.

35 Ibid., p. 748.

36 G.R. No. 69870, Naseco vs. NLRC: G.R. No. 70295, Eugenia C. Credo vs.NLRC, 29 November 1988.

37 Sec. 13, Rep. Act No. 3019; People of the Philippines vs. Hon. Rodolfo B.Albano , G.R. No. L-45376-77, July 26, 1988; Luciano vs, Provincial Governor, 20SCRA 516.

concepcion-bautista v. salonga, gr no. 86439

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